Supreme Court Canada invalidates Pfizer’s Viagra Patent


Supreme Court Voids Viagra Patent as Insufficient Disclosure Means It Fails the “Patent Bargain”

Canada’s top court has ruled that Pfizer’s patent on their groundbreaking erectile dysfunction drug Viagra won’t be valid for much longer. The unanimous decision opens the door to the production of a generic version of Viagra in the near future.

Thursday November 08, 2012 http://www.michaelgeist.ca/

The Supreme Court of Canada this morning shocked the pharmaceutical industry by voiding Pfizer’s patent in Canada for Viagra. The unanimous decision provides a strong reaffirmation of the policy behind patent law, namely that patents represent a quid pro quo bargain of public disclosure of inventions in return for a time limited monopoly in the invention. The Supreme Court describes it in this way:

The patent system is based on a “bargain”, or quid pro quo: the inventor is granted exclusive rights in a new and useful invention for a limited period in exchange for disclosure of the invention so that society can benefit from this knowledge. This is the basic policy rationale underlying the Act. The patent bargain encourages innovation and advances science and technology.

Disclosure is therefore a crucial part of the patent bargain.

The court clarifies that this involves not only a description of the invention and how it works, but rather a much more practical level of disclosure “to enable a person skilled in the art or the field of the invention to produce it using only the instructions contained in the disclosure.” In this case, the court finds that Pfizer failed to provide sufficient disclosure, concluding:

the public’s right to proper disclosure was denied in this case, since the claims ended with two individually claimed compounds, thereby obscuring the true invention. The disclosure failed to state in clear terms what the invention was. Pfizer gained a benefit from the Act – exclusive monopoly rights – while withholding disclosure in spite of its disclosure obligations under the Act. As a matter of policy and sound statutory interpretation, patentees cannot be allowed to “game” the system in this way.

Pfizer argued strenuously that this should not result in invalidating the patent, but Justice Lebel, writing for the court, found no other alternative. The Viagra patent is therefore voided in Canada (which will allow for generic substitutes) and the importance of the basic foundation of patent policy for the broader benefit of society reaffirmed.

Aboriginal Groups Warily Watch Canada Brothel Law


By Sadiya Ansari, Tuesday, January 24, 2012

Groups representing Aboriginal women hope the government will have a partial victory in upholding current prostitution laws. They say female sex workers need to be decriminalized, but they will be endangered if the government stops arresting pimps and johns.

VANCOUVER, Canada (WOMENSENEWS)–The Canadian government is appealing a judge’s decision to decriminalize many aspects of prostitution.

As Aboriginal women’s advocates wait for the decision of the Ontario Court of Appeal, it’s a time of ambivalence.

While they side with the decriminalizing judge when it comes to the treatment of prostitutes, they agree with the federal government on outlawing pimps and johns, because they often commit violence against sex workers.

“It’s not a question of morality,” said Teresa Edwards, in-house counsel for the Native Women’s Association of Canada, which is based in Ottawa and represents 13 Aboriginal women’s organizations across the country. “It’s a question of safety.”

Aboriginal women are over-represented among sex workers, who are often living in poverty, suffering from addiction and have few other choices. Predatory gangs target these women, says Edwards, when they are as young as 9 years old.

A decision on the federal government’s June 2011 appeal–following the Ontario Superior Court‘s September 2010 decision striking down anti-prostitution laws as unconstitutional–is expected early this year from the appeal court in Toronto.

Such rulings are typically published within six months, but the Ontario Court of Appeal has indicated in cases as complex as this one, a ruling may take longer.

Meanwhile in British Columbia, sex workers are trying to launch a constitutional challenge to the prostitution laws. The Supreme Court of Canada will decide on whether the group will be able to initiate a challenge based on arguments presented to the court last week.

Related Activities Illegal

While prostitution is not illegal in Canada, related profits and activities are.

Justice Susan Himel ruled the laws outlawing the keeping of a common bawdy house, communicating for the purposes of prostitution and living off its avails were unconstitutional.

Despite the ruling, these offenses remain illegal during the duration of the appeal.

In Canada, women are more likely to be convicted and incarcerated for prostitution offenses than men. A 2009 government study found 32 percent of women found guilty of prostitution were sent to prison as compared to 9 percent of men found guilty.

Aboriginal women, meanwhile, are suffering skyrocketing incarceration rates. A 2010-2011 federal report of the Office of the Correctional Investigator found that 34 percent of incarcerated women were Aboriginal. Over the last 10 years, the number of incarcerated Aboriginal women increased by 86.4 percent, while the number of Aboriginal men in prison has grown by 25.7 percent.

But advocates say decriminalizing all aspects of prostitution is not a way to reverse this trend. Instead, they say the country should be embracing the Nordic model for addressing prostitution.

Implemented in Sweden, Norway and Iceland, this approach criminalizes buyers and those who profit off the industry while decriminalizing women engaged in prostitution.

“Absolutely you need to decriminalize women in prostitution,” said Janine Benedet, co-counsel of the Intervener Women’s Coalition. “To simply decriminalize and legitimize men’s purchase of women in prostitution goes in exactly the wrong direction if your goal is to protect women.”

The Intervener Women’s Coalition represents seven groups across the country, including the Native Women’s Association of Canada, Canadian Association of Sexual Assault Centers and Vancouver Rape Relief. Its intervener status–given for the purpose of the appeal process–means the court will hear its perspective because the ruling will directly impact its members.

Many Aboriginal advocates echo arguments about risking women’s safety if all aspects of prostitution were decriminalized.
Safer for Some

Decriminalization might make it safer for some prostitutes as they move into brothels and away from some of the dangers of the open streets.

But Samantha Grey, a member of the Vancouver-based Aboriginal Women’s Action Network, doubts this applies to most Aboriginal women.

She says they face more violence, higher rates of HIV, more drug addiction and would probably be excluded from brothels because they would not meet standard criteria for employment.

Benedet says many of these social problems, including prostitution, are a direct result of Canada’s history of colonialism and persisting government policies applying to Aboriginal women. One prime example is residential schools, which were funded by the government and run by churches, aimed at assimilation. Aboriginal children were taken from their families, isolated from their culture and many suffered through physical, emotional and sexual abuse.

Edwards agrees and in particular thinks the legacy of abuse in residential schools has taken a toll on younger generations of Aboriginals whose parents have undergone trauma.

“We are taking a position that the government has an obligation not to confine Aboriginal women to prostitution as their social safety net,” said Benedet, adding that the government needs to acknowledge that prostitution should not be a solution for Aboriginal women to ameliorate poverty, educational disadvantage and addiction.

One group within the Aboriginal community has applauded the decriminalization ruling though.

The Native Youth Sexual Health Network works with indigenous youth across Canada and the United States. In a statement, it said the September 2010 ruling could reduce street-based violence if women have access to indoor working conditions. The statement also said prostitutes may be able to negotiate safer working conditions, such as condom use, with a client or report violence without fear of being arrested.

But Benedet disagrees. “There’s a lot of other reasons those women wouldn’t want to call the police,” she said.

One of those reasons, according to Grey of the Aboriginal Women’s Action Network, is the fear that the police, themselves, can perpetrate sexual violence on prostitutes.

Sadiya Ansari is a Pakistani-Canadian freelance writer, based in Vancouver.